Contract
EXHIBIT
4.1
This
SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental
Indenture”), dated as of October 31, 2018, among General
Finance Corporation, a Delaware corporation (the
“Company”), and Xxxxx Fargo Bank, National Association,
as trustee (the “Trustee”).
RECITALS
WHEREAS, the
Company and the Trustee are parties to an indenture, dated as of
June 18, 2014 (the “Base Indenture”), providing for the
issuance by the Company from time to time of its debt securities to
be issued in one or more series;
WHEREAS, the
Company and the Trustee are parties to a first supplemental
indenture to the Base Indenture, dated as of June 18, 2014 (the
“First Supplemental Indenture” and, together with the
Base Indenture, the “Indenture”), creating a series of
debt securities designated as the “8.125% Senior Securities
due 2021” (the “Securities”). Capitalized terms
used but not defined herein have the meanings given to them in the
Indenture;
WHEREAS, Section
9.2 of the Base Indenture provides, among other things, that the
Company and the Trustee may amend or supplement the Base Indenture
with the consent of the Holders of a majority in principal amount
of the then outstanding Securities of each series affected by such
amendment or supplement (acting as a separate class);
WHEREAS, pursuant
to the terms of the Indenture, the Company desires to amend and
supplement Section 1.01 of the First Supplemental Indenture on the
terms set forth herein (collectively, the
“Amendments”);
WHEREAS, the
Company solicited, and has received, consent to the Amendments from
the Holders of at least a majority in principal amount of the
outstanding Securities upon the terms set forth in the
Company’s Consent Solicitation Statement dated October 16,
2018;
WHEREAS, pursuant
to Section 9.2 of the Base Indenture, the Trustee and the Company
are authorized to execute and deliver this Second Supplemental
Indenture to amend and supplement the First Supplemental Indenture;
and
WHEREAS, all
actions required to be taken by the Company under the Indenture to
make this Second Supplemental Indenture a valid, binding and legal
agreement of the Company have been taken.
WHEREAS, this
Supplemental Indenture shall not result in a material modification
of the Securities for purposes of compliance with the Foreign
Account Tax Compliance Act.
NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the sufficiency and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
Section
1.01 Amendments. Section 1.01 of the
First Supplemental Indenture is hereby amended and supplemented as
follows:
(a) By adding the
following definition:
“Master Lease
Agreement” means any master lease agreement or lease
agreement as may be entered into from time to time by and among the
Company and/or any of its Restricted Subsidiaries, on the one hand,
and any lessor or lessors, on the other hand, evidencing a
Capitalized Lease Obligation.”
(b) By deleting
paragraph (2) of the definition of “Permitted
Indebtedness” in its entirety and replacing it with the
following:
“Indebtedness
incurred pursuant to the Credit Agreement, including any permitted
refinancing thereof, in an aggregate principal amount at any time
outstanding not to exceed the greater of (i) $300 million (or $325
million upon the exercise of any $25 million accordion increase
under the Credit Agreement), less the amount or all required
permanent repayments (which are accompanied by a corresponding
permanent commitment reduction thereunder) and (ii) the Borrowing
Base, including any permitted refinancing
thereof;”
(c) By deleting
paragraph (24) of the definition of “Permitted
Indebtedness” in its entirety and replacing it with the
following:
“Indebtedness
incurred pursuant to the Master Lease Agreement and any other
Capitalized Lease Obligation as the Company and/or its Restricted
Subsidiaries may enter into from time to time in an aggregate
amount at any time outstanding not to exceed $15
million;”
Section
1.02 Ratification of Indenture. This
Second Supplemental Indenture is executed and shall be constructed
as an indenture supplement to the Indenture, and as supplemented
and modified hereby, the Indenture is in all respects ratified and
confirmed, and the Indenture and this Second Supplemental Indenture
shall be read, taken and constructed as one and the same
instrument.
Section
1.03 Trust Indenture Act Controls.
If any provision of this Second Supplemental Indenture limits,
qualifies or conflicts with another provision that is required or
deemed to be included in this Second Supplemental Indenture by the
TIA, the required or deemed provision shall control.
Section
1.04 Notices. All notices and other
communications shall be given as provided in the
Indenture.
Section
1.05 Governing Law. THIS SECOND
SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE COMPANY, THE TRUSTEE AND THE HOLDERS
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS SECOND SUPPLEMENTAL
INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED
HEREBY.
Section
1.06 Successors. All agreements of
the Company in this Second Supplemental Indenture and the
Securities shall bind their successors. All agreements
of the Trustee in this Second Supplemental Indenture shall bind its
successors.
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Section
1.07 Multiple Originals. The parties
may sign any number of copies of this Second Supplemental
Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One
signed copy is enough to prove this Second Supplemental
Indenture. The exchange of copies of this Second
Supplemental Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of
this Second Supplemental Indenture as to the parties hereto and may
be used in lieu of the original First Supplemental Indenture for
all purposes. Signatures of the parties hereto
transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
Section
1.08 Headings. The headings of the
Sections of this Second Supplemental Indenture have been inserted
for convenience of reference only, are not intended to be
considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
Section
1.09 Trustee Not Responsible for
Recitals. The Trustee accepts the amendments of the
Indenture effected by this Second Supplemental Indenture, but on
the terms and conditions set forth in the Indenture, including the
terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee. Without limiting the
generality of the foregoing, the recitals contained herein shall be
taken as statements of the Company, and the Trustee does not assume
any responsibility for their correctness. The Trustee
makes no representations as to (i) the validity or sufficiency of
this Second Supplemental Indenture or any of the terms or
provisions hereof, (ii) the proper authorization hereof by the
Company by action or otherwise, (iii) the due execution hereof by
the Company or (iv) the consequences of any amendment herein
provided for, and the Trustee makes no representation with respect
to any such matters, except that the Trustee represents that it is
duly authorized to execute and deliver this Second Supplemental
Indenture and perform its obligations hereunder.
Section
1.10 Binding Nature of Supplemental
Indenture. The Company hereby represents and warrants that
this Second Supplemental Indenture is its legal, valid and binding
obligation, enforceable against it in accordance with its
terms.
[Signature
Pages Follow]
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IN
WITNESS WHEREOF, the parties have caused this Second Supplemental
Indenture to be duly executed as of the date first written
above.
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COMPANY:
GENERAL FINANCE CORPORATION
By: /s/ Xxxxxxxxxxx X.
Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: General Counsel, Vice President & Secretary
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[Signature Page to Second Supplemental
Indenture]
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TRUSTEE:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
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[Signature Page to Second Supplemental
Indenture]
